United States Court of Appeals
for the
District of Columbia Circuit
RECORD
du Ohe Bnited States Court of Appeals
FOR THE OISTRICT OF COLUMBIA CIRCUIT
NO. 14,635
131
CHARLES C. GRIGG,
Appellant,
~
KH ) Sarah?
Y~ ~ CLERE
Ve
UNITED STATES OF AMERICA,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA
Indictment.
Judgment and Commitment
Order Allowing Leave to Proceed on Appeal in Forma Pauperis s
Excerpts from Transcript of Proceedings:
Witnesses:
James M. Harrigan, Jr.
Direct
Cros «sss
Cross (resumed)
Donald W. Bowie
Direct ...
Cross ...
Redirect ..
William P. Butler
Direct ...
Charles Grigg
Direct
Cross
Cross (Resumed) .
Judge's Charge to the Jury
1
JOINT APPENDIX
[ Filed July 29, 1957]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Holding a Criminal Term :
Grand Jury Impanelled May 2, 1957, Sworn in on May 7, 1957.
The United States of America : Criminal No. 693-57
Vv. : Grand Jury No. 517-57
530-57
Charles C. Grigg : :
Donald V. Sellers : pusnad
Carl F. Tavemer $ Vio. 26 U. S. C.: ‘ATA2 a, 4744a,
33 D. Sele ‘102
The Grand Jury charges:
On or about April 4, 1957, within the District of Columbia, Charles C.
Grigg, Donald V. Sellers and Carl F. Tavenner transferred about 44.0 grains
of marihuana to James M. Harrigan, not in pursuance of a written order of said
James M, Harrigan on a form issued for that purpose as provided by law.
SECOND COUNT:
On or about April 4, 1957, within the District of Columbia, Charles C.
Grigg, Donald V. Sellers and Carl F. Tavenner, being transferees of marihuana
required to pay the transfer tax imposed by Section 4741a, Title 26, United
States Code, obtained about 44.0 grains of marihuana without having paid such
tax. 7
THIRD COUNT: |
On or about February 12, 1957, inthe Districtof Columbia, Donald V. Sellers
delivered a dangerous drug, that is, two capsules, each containing one and one
half grains of secobarbital sodium, to James M. Harrigan a person not lawfully
entitled to receive said drug.
FOURTH COUNT:
On or about February 13, 1957, within the District of Columbia, Donald V.
Sellers delivered a dangerous drug, that is, two tablets, each containing ten milli-
grams of racemic amphetamine sulfate, to James M. Harrigan a person not lawfully
entitled to receive said drug.
FIFTH COUNT:
On or about February 25, 1957, within the District of Columbia, Carl F.
Tavenner delivered a dangerous drug, that is, sixty tablets, each containing
ten milligrams of racemic amphetamine sulfate, to James M. Harrigan a
person not lawfully entitled to receive said drug.
SIXTH COUNT:
On or about March 26, 1957, within the District of Columbia, Carl F.
Tavenner delivered a dangerous drug, that is, five tablets, each containing ten
milligrams of racemic amphetamine sulfate, to James M. Harrigan a person
not lawfully entitled to receive said drug.
/s/ Oliver Gasch
Attorney of the United States in
and for the District of Columbia
A TRUE HILL:
/3/ B. T. Castle
Foreman.
[ Filed June 16, 1958] United States of America v. Charles C. Grigg
JUDGMENT AND COMMITMENT
On this 6th day of June, 1958, came the attorney for the Government and
the defendant appeared in person and by counsel, John W. Brennan, Esquire.
IT IS ADJUDGED that the defendant has been convicted upon his plea of
not guilty and a verdict of guilty of the offense of
VIOLATION OF THE FEDERAL NARCOTIC LAWS, as charged, in counts
one and two, and the Court having asked the defendant whether he has anything
to say why judgment should not be pronounced, and no sufficient cause to the con-
trary being shown or appearing to the Court,
IT IS ADJUDGED that the defendant is guilty as charged and convicted.
IT IS ADJUDGED that the defendant is hereby committed to the custody
of the Attorney General or his authorized representative for imprisonment for
a period of
3
Five (5) years on count one of the indictment; Twenty (20)
months to Five (5) years on count two of the indictment said
sentence imposed on count two to run concurrently with the
sentence imposed on count one of the indictment, |
IT IS ORDERED that the Clerk deliver a certified copy of this judgment
and commitment to the United States Marshal or other aualtfied officer and that
the copy serve as the commitment of the defendant, |
/s/ Edward A. Tamm
United States District Judge
[Filed June 13, 1958] ORDER
UPON consideration of the Petition for Leave to Proceed on Appeal in
Forma Pauperis, the Affidavit in Support of Application for Leave to Proceed
Without Prepayment of Costs, and the Reporters Transcript if needed, and an
oral motion to set bond in the sum of $1,000.00, having been heard in open
IT IS, by the Court, this 13th day of June, 1958, |
ORDERED: (1) That the defendant be and he hereby is pee leave to
proceed on appeal without prepayment of costs; and, |
(2) That an appeal bond in the sum of $1,000. 00 be and it hereby is set
for the defendant, Charles C. Grigg.
/s/ Edward A. mn
JUDGE |
EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS
THE UNITED STATES OF AMERICA |
vs. : Criminal Action No. 693-57
CHARLES C. GRIGG, : !
CARL F. TAVENNER, :
Defendants. : Thursday, April 24, 1958
The above-entitled matter came on for trial before THE HONORABLE
EDWARD A. TAMM, Judge, United States District Court for the District of
Columbia, at 2:35 p.m.
APPEARANCES:.
For the Government:
ARTHUR J. McLAUGHLIN, Assistant District Attorney
For the Defendants:
JOHN W. BRENNAN, Esquire
SAMUEL BOGORAD, Esquire
* * * * *©* *&* *&
JAMES M. HARRIGAN, JR.
*-s+***x* * *
DIRECT EXAMINATION
* * * * *€ &€ * *
Q. Now, Officer Harrigan, talk real loud so we can all hear you. What
is your full name, sir? A. James M. Harrigan, Jr.
Q During the month of April, 1957, where did you live? A. In the 200
block of 7th Street, -Southeast.
Q And during the month of April, 1957, where were you employed? A.
At the Metropolitan Police Department.
Q Talk louder, please. During the month of April, 1957, as a member of
the Metropolitan Police Department, were you assigned to any specific duties?
A. Yes, sir. I was assigned to the Narcotics Squad in an undercover
capacity.
Q In an undercover capacity? A. Yes, sir.
Q And your duties in that undercover capacity were what? A. To make
buys of narcotics in this particular area I had been assigned to.
Q Now, recalling your attention to April 2nd, 1957, on that particular date
were you working as a member of the Metropolitan Police Department? A.
Yes, sir.
Q As an undercover agent for the Narcotics Squad; is that right? A.
Yes, sir.
Q And as such on that date of April 2nd, do you recall whether or not
you were in the northwest section of Washington, D. C.? A. Yes, sir; I was.
5
Q Can you tell us what particular section of the northwest section of
Washington, D. C. you were in? A. Yes, sir; 3201 - 14th Street, Northwest.
Q What was located there? A. An establishment by the name of Charles
Grill. |
Q At what time were you there? A. At Ty 9:15.
Q Is that a.m., p.m. or what? A. That is p.m., sir.
Q P.M. A. Yes, sir.
4 Q Did you go in those premises? A. Yes, I did. :
Q After entering those premises, did you meet any particular people?
A. Yes, sir; I did. I met the defendants.
Q Who did you meet in those premises on that date of April 2nd? A.
Charles Grigg and Carl Tavenner. |
Q While in those premises with the two defendants, Grigg and Tavenner,
did you have a conversation with them? A. Yes, I did. 3
Q Relate the conversation you had with them, if you will? A. The defend-
amt Tavenner came over to me and asked me if I would like to go in with him on
a some pot, meaning marihuana. And I told him I would. He said how much did I
want to get. I said all I had was $10 to get a half ounce. He said, "O.K." So,
defendant Grigg, defendant Tavenner and myself left Charles Cafe and drove to a
place in Maryland, went out toward BladersburgRoad. While we were going out there --
we were around Bladensburg and New York Avenue -- I gave os $10 to defendant Grigg.
Q For what? A. For the pot.
! 5 Q Marihuana? A. Yes, marihuana. 1
Q Allright, continue. A. And then we went on out there and they were
: : unable to get any.
i, Q Where did you go out there? A. To where the Rustic Cabins is.
|. Q Where is that located? A. It is on Bladensburg Road. I don't know the
i” address. |
i’ Q Can you tell us the nearest intersection to that place? A. Bladensburg
; Road and Eastern Avenue.
Q What happened when you arrived out there? A. I waited in the car and
6
the defendants Tavenner and Grigg got out, and later came back and told me they
were unable to get the marihuana I wanted.
Q How long would you say they were out of the car, approximately? A.
I would say approximately 20 or 25 minutes.
Q When they returned to the car, what happened? A. They got in an --
Q When you say they, you mean whom? A. Tavenner and Grigg, the
defendants
Q Keep your voice up, Mr. Harrigan. A. Yes, sir. -- And they got in
the car and we left the Rustic Cabins and headed back towards Charles Grill.
While we were going back, they told me that they had a couple joy sticks, meaning
cigarettes. They lit those up on the way coming back, passed them back and
forth and passed them to me occasionally. AndI pretended to smoke them. Then
we got back to Charles Cafe.
Q Where was that iocated? A. 3201 - 14th Street, Northwest.
Q What time would you say you got back there? A. I would say about 10:45.
Q Isthatp.m.? A. Yes, p.m.
* * * €¢ €¢ * € *
Q I believe your testimony was you had returned to Charles Grill; is
that right? A. Yes, sir.
Q What happened when you returned to Charles Grill? A. We went in and
took a seat.
Q When you say we, who do you mean? A. Defendants Tavenuner and
Grigg and myself. We took a seat and the defendant Tavenner suggested we get
something to eat. I told him I didn't have any money. He then suggested we get
$2 from the defendant Grigg, who had the $10 I had previously given him; and so
we got $2 from him.
Q From whom? A. From the defendant Grigg. And Carl Tavenner and
myself left Charles Tavern and went across the street to get something to eat.
The defendant Grigg stayed in the place.
Q Did you have further conversations at that time with Grigg or Tavenner?
A. None with Tavenner other than when we were in Charles Grill; and
10
7
defendant Grigg said he wai ld get the marihuana later.
Q. Did you see or talk to them, that is defendants Grigg and Tavenner,
any more on that date of April 2nd, 1957? A. No, sir; I did not.
* * ¢ * *€ € & *€ !
Q Now, on April 4, 1957, did you do anything in reference to the marihuana
that Grigg told you he would get later? |
MR. BOGORAD: Objection, Your Honor.
x ** * * * & €
THE COURT: The witness has testified he told him he would get marihuana
later. I will overrule your objection. You may answer the question.
|
BY MR. McLAUGHLIN:
-@Q Answer yes or no. A. Yes, sir.
Q What did you do? A. Wel, I made a phone call to an apartment house
at 6030 13th Place, Northwest.
Q Whom did you make that phone call to?
MR. BOGORAD: Objection, Your Honor.
THE COURT: What is the ground for your objection?
MR. BOGORAD: There is no evidence that raises any connection between
a phone call made by this witness and the defendant Grigg. :
THE COURT: I think counsel is entitled to ask questions and establish what-
ever connection he can. Your objection is overruled.
* * * * * *€ * * |
Q Did you talk to Domnie Sellers at that time? A. Yes, sir, I did.
Q Did you recognize the voice as being Donnie Sellers"? A. Yes, I did,
Q Now, what conversation -- Don't answer this question until we get a
ruling -- What conversation did you have with Donnie Sellers at that time?
MR. BOGORAD: Of course, I don’t know what the witness is going to say.
If he is going to say this conversation related to either one of these defendants,
I object.
MR. BRENNAN: I think these matters are material points in issue. The
witness is being led right down the line. °
8
THE COURT: I don’t think you have touched the basis upon which objection
Should be made. I believe this is hearsay. I will assume you will object on that
ground and sustain your objection. Go ahead.
* *¢ © * * *€ * *
11 Q Asa result of the conversation that you had with Sellers, what did you
do or where did you go? A. I left my home where I made the phone call from
and drove to 6030 - 13th Place, Northwest where Donnie Sellers was.
Q That was approximately what time of day? A. I made the call at 6:30.
I arrived at 6030 - 13th Place at 8:00 p.m.
Q After arriving at those premises, did you enter those premises? A. Yes.
Q Who did you seein there? A. Donnie Sellers and Alberta Dove.
Q After entering those premises, did you receive anything from Mr. Sellers?
A. Yes, I did.
Q What did you receive from Mr. Sellers?
MR. BOGORAD: Objection, if Your Honor please. There is still no basis
laid for connecting either one of these defendants with any transaction with Mr.
Sellers.
THE COURT: That is correct. I think counsel has the right to ask his
questions and establish any connection he can. Go ahead, Mr. McLaughlin.
BY MR. McLAUGHLIN:
Q Iasked you what you had received from Mr. Sellers. A. I received a
cellophane wrapper containing a weed, greenish colored weed. It looked like a
cigarette wrapper.
MR. McLAUGHLIN: I ask that this be marked Government's Exhibit 1,
for identification.
(Cellophane wrapper with contents marked
Government's Exhibit No. 1, for identifica-
tion.)
BY MR. McLAUGHLIN:
Q Ishow you Government's Exhibit marked No. 1 for identification, Mr.
Harrigan, and ask you if you can identify that? A. Yes, sir.
Q You identify Government's Exhibit marked No. 1 as what? A. As the
9
" 13 cellophane wrapper containing the weed that Donnie Sellers handed to me
in the apartment. |
Q After receiving Government's Exhibit marked No. 1 for identification,
. what did you do with it? A. I placed it in my pocket and left the premises and
: : drove to my home.
° Q Did you give Mr. Sellers any orijer issued by the Treasurer for purpo-
+ ses of purchasing marihuana? A. No, sir. !
Q Did you give Mr. Sellers any form issued by the Department of the
Treasury for purchasing marihuana? A. No, sir.
Q As far as the Government Exhibit marked for identification No. 1, at
the time you received it from Mr. Sellers, did it have government stamps of
c any kind on it? A. No, sir. |
° Q After receiving Government Exhibit marked for identification No. 1
’ from Mr. Sellers, what did you do with it? A. I placed it in my pocket,
Q Allright. Then where did you go? A. Then I went:home.
Q Allright. Then what did you do later with Government Exhibit marked
for identification No. 1? A. I placed it in a cream colored envelope.
14 Q When did you place it in the cream colored envelope? A. At home.
Q Then what did you do with it? A. Then I marked it, initialed it, and
put the time, date and place where I had received it and from whom; and then I
. placed it in a china cabinet, locked it and put the key in my pocket.
Q Then what did you do? A. The following day, I met Officer Longo and
Officer Foulkes at the monument grounds at about 11:00 p.m. :
Q That is Government's Exhibit No. 1, for identification? A, Yes. At
that time, I turned it over to Officers Longo and Foulkes.
_¢
+
i Q Was Government's Exhibit No. 1, for identification, in your exclusive
‘ possession from the time you received it from Mr. Sellers until you. turned it
. over to Officer Longo?
> MR. BOGORAD: Objection; it calls for a conclusion.
i THE COURT: Objection overruled. Answer the question.
THE WITNESS: Yes, it was.
10
* * * *¢ *¢ &€ + &
15 Q Getting back -- I overlooked the location where Sellers had turned over
the package of marihuana to you -- Was that in the District of Columbia? A.
Yes, sir.
* £¢£ * &€ &€ * & *&
25 Q Now, you referred to a person named Griggs in your testimony here
today. A. Yes, sir.
Q Do you see him in court today? A. Yes, Ido.
26 Q Will you point him out, please? A. He is seated there, second from
the left.
MR. McLAUGHLIN: May the record show he identified the defendant Charles
C. Grigg, Your Honor?
THE COURT The record will so indicate.
* * *€ *€ *€ € * *
Q All you have testified to today, Officer, happened in the District of
Columbia? A. No, sir.
Q As far as the transfer of these marihuana cigarettes and tablets, did
that happen in the District of Columbia?
MR. BOGORAD: Objection.
THE COURT: State the grounds for your objection.
MR. BOGORAD: He is leading the witness, Your Honor.
* * * * * *€ * *€
CROSS-. EXAMINATION
BY MR. BRENNAN:
* *¢ ££ *€ *€ * *€
Q Can you recall going to Kinney's Shoe Store before 9 o’clock on April
2nd, 1957? A. Yes, sir; I believe we were near there. I don't recall going in
that place.
Q Who was with you at that time? A. Carl Tavenner.
**e * * &€ &€ *€
Q When did you first meet Carl Tavenner that night, on April 2nd?
11 |
A. I don't recall when I first met him; I might have seen him during the day.
Q You certainly met him at 9:15 p.m. at Charles Tavern, didn't you?
A. Yes, sir.
Q. At that time was the defendant Grigg there too? A. | Yeu, sir.
Q. Were you in the restaurant before they arrived there?
* *+ *£ *£ *€ *& OK OF
29 Q Now, you have testified you met the defendants mi and Tavenner in
Charles Restaurant at about 9 o'clock on the evening of April 2nd. What did you
do at that particular time? A. I just walked in and the defendant Tavenner came
up to me and started talking.
Q You recall that? A. Yes, sir.
30 Q You don't recall whether or not you met him earlier in the day, though?
A. No, sir. !
Q Where were they sitting when you came in, sir? A. On the left-hand
side as you enter the place, the establishment.
Q Didn't you just testify a short time ago that you didn't know whether
you were there prior to their arrival or not? A. That is right; yes, sir.
Q Were they sitting at a table or sitting at the bar? A. They were sitting
at a table, not the bar.
Q Was anyone else there with them, sir? A. I don't pelieve, sir; Iam
not sure. |
Q What did they have -- Were they drinking at the time? A. They might
have been; I don't recall. !
Q. But you do remember the defendant Tavenner coming up and talking to
you; is that correct? A. Yes, sir. |
Q When the defendant Tavenner came up to you, sir, where was the
defendant Grigg? A. He stayed seated at the table.
Q Officer Harrigan, are there two doors in Charles Tavern?
* * * * € *€ * *
31 Q. So, you can recall what occurred after 9 o'clock on Apri 2nd, 1957;
is that correct? A. Yes, sir.
12
Q Can you recall what happened between 8:30 and 9 o'clock, sir? A.
Very vaguely.
Q Isn't it a fact you went into Kinney'’s Shoe Store and talked to the defend-
ant Grigg? A. No, sir.
MR. BRENNAN: Your indulgence, Your Honor.
BY MR. BRENNAN:
Q Sir, did you go to the front of the store and call the defendant Grigg out
on the sidewalk in front of the store? A. No, sir.
Q Between 8:30 and 9 o'clock on that night, who was with you? A.I
believe Carl Tavenner and I were together.
Q You believe, sir? A. I think so; I am not sure.
Q Where did you and Carl Tavenner go? A. We went across the street
to Kinney’s Shoe Store now that you refresh my memory.
Q Did you talk to the defendant Grigg at that time? A. Carl Tavenner
called him out of the store.
Q Do you know what the defendant Grigg was doing at that particular
time? A. I think he worked at that place; Iam not sure.
Q And after the defendant Tavenner greeted you as you entered Charles
Tavern, what did you thereupon do? A. Well, there was a conversation between
Tavenner and myself.
Q Standing up? A. Yes, sir.
Q You didn’t go over to the table and sit down with the defendant Grigg?
A. We did go over there, yes.
Q As the defendant Tavenner came up and approached you as you were
coming in Charles Tavern, was anything said? A. Yes, we spoke.
** * * € * * *
Washington, D. C.
Monday, April 28, 1958
The above-entitled matter came on for further trial before THE HONORA-
BLE EDWARD A TAMM, Judge, United States District Court for the District of
Columbia, at 10:00 a.m.
39
13
* * * * *€ € € *
CROSS- EXAMINATION (Resumed)
BY MR. BRENNAN:
Q Officer Harrigan, after you left the Rustic Cabin in Maryland, you
returned to Charles’ Grill; is that correct? A. Yes, sir.
Q About what time was that, sir? A. About 10:30, I would say.
Q Did the defendant =e and the defendant Tavener accompany you back
to Charles’ Grill? A. Yes, sir. |
Q Did you enter Charles’ Grill at that time with the two defendants ?
A. Yes, sir. |
Q Did you have occasion to sit at the table with them at that particular
tavern? A. I believe we did, yes, sir.
Q At that time you received $2.00 from the defendant Grigg? A. Yes, sir.
Q. Prior to receiving the $2.00, sir, did you have occasion to have a glass
of beer with them, or something to drink? A. I don't believe we were in that long.
Q Did they order anything to drink? A. I don't believe so. I am not sure.
* * *¢ *€ *£ * * * |
Q Did you have occasion to take the defendant Tavemer to dinner or lunch
at that particular time? A. We went across the street and got something to eat,
yes.
Q How long did that take, sir? A. Well, mormal cating. time. We didn't
waste any time. |
Q Did you return to Charles’ Tavern after that? A. No, I believe I left
after that. |
* * *¢ *€ * *€ K *€ :
Q Now, I ask you, sir, after you had dinner with the detendant Tavenner
where did you go, sir? A. Back to Charles’. |
Q At the time you went to Charles’ did you enter the restaurant? A. I
honestly don't recall. I am not sure whether I went in. I think I win stayed
momentarily and then left. :
Q Isn't it a fact you and the defendant Tavenner sat in Charles? drinking
|
14
beer? A. No sir, I don’t believe so.
Q. What was the last time you saw the defendants Grigg and Tavenner on April
2nd, sir, 1957? A. It was in Charles’.
Q. What time of the evening was that, sir? A. It was right late. I would
say close to twelve o’clock.
Q. And during the time that you spent in Charles’, the first part of the
early part of the evening, nine o’clock or later when you returned to Charles’,
and again after you went to lunch and came back, you did not have anything to
eat or drink in Charles, sir? A. Idon't believe so. Now, I may have. Iam
not sure.
Q. Was there any money spent by the defendants Grigg or Tavenner on
you in that particular restaurant? A. Oh, there could have been, yes, sir.
Q. During the course of the evening, sir, who was paying the checks in
‘Charles’ Tavern? A. I honestly don’ recall having drank that much, or anything. ~
* * &© © &©& © & *
REDIRECT EXAMINATION
BY MR. MC LAUGHLIN:
* * *&© © © © © *
Q. Now, Officer, when did you leave the Metropolitan Police Department ?
A. February 25th.
Q. February 25th? A. 58, yes, sir.
Q. And you have been stationed where since? A. Fort Jackson, South
Carolina.
Q. When did you come to Washington for this case? A. April 23rd.
49 Q. Now, you were questioned about, on April 2nd, as to whether or not
Grigg, I believe, brought you anything to eat or drink in Charles’ Tavern?
A. April 2nd?
Q. Yes, you remember those questions? A. Yes, sir.
Q. Now, had you given the defendants, or any of the defendants, any money
on that day? A. Yes, sir, I had.
Q. And was any of the money that you had given to the defendants used
50
51
52
15
to buy anything to eat or drink in Charles’ Tavern, or Grill? A. No, sir.
Q. Was it used any place to buy anything to eat or drink? A. Yes, sir,
$2.00 that I received from Grigg. !
Q. Now, on April 4th, I believe your testimony was that you contacted
Sellers; is that right? A. Yes, sir.
Q. Now, after you had received a marihuana from Sellers, did you have
occasion to see either Tavenner or Grigg after that? A. Yes, sir, I did.
Q. And which one did you see? A. Well, first Botts and I went down to
Charles’ Cafe and there we saw Carl Tavenner.
Q. What time did you see Carl Tavenner in Charles Tavern? A. At ape-
proximately 9:30. :
Q. That was how long after you had received the marihuana from Sellers?
MR. BOGORAD: I am going to object. This is the Government's case in
chief. It wasn't opened up in the defense testimony. If he intended to introduce this
he should have introduced it in his case in chief.
MR. McLAUGHLIN: In view of the objection by my friend, Your Honor,
may I at this time reopen the Government's case in chief to offer this evidence,
because I didn’t know this until the other day.
THE COURT: Is this something that was overlooked through an inad-
vertence? :
MR. McLAUGHLIN: Well, I actually didn't know it, Your Honor, until af-
ter the defendant had testified in chief. It is something that I learned later.
* * *£ *€ *&€ *€ & OF
BY MR. McLAUGHLIN:
Q. I believe you said -- you saw Carl Tavenner at what time? A.9:30,
approximately.
Q@. Was that p.m. ora.m.? A. P.m.
Q. And was that after you had received the marihuana from Sellers? A.
Yes, sir.
Q. And where did you see Carl Tavemer? A. In Charles’ Cafe.
Q. Now, after you saw Carl Tavemer in the cafe, did there come atime
1
‘
1
|
|
16
when you saw Grigg? A. Yes, sir.
Q. And when and where did you see Grigg? A. Well, Carl Tavenner and
Botts and myself left Charles’ and walked across the street and -~
@ You walked across the street to where? A. To the shoe store where
he works.
Q. And what happened when you arrived there? A. He came out.
Q. Who came out? A. Charles Grigg -~- and joined us.
Q. Now, you say he joined you. What do you mean by that? A. Well, he
came out of the store and we all left that area together.
Q. Where did you go? A. To 930 Emerson Street.
Q. Now, 930 Emerson Street, is that the same place where you had re-
ceived the marihuana from Sellers? A. No, sir.
Q. Now, did you have any conversation with Grigg or Tavenner in refer-
ence to the narcotics received from Sellers?
* * *¢£ * * * * *
Q. I will ask you this question: When you went to the Emerson Street
address, who was with you? A. Botts, Carl Tavenner, Charles Grigg, and my-
self. |
Q. Now, from the time that you went to -- that is, from the time that you
left Charles’ Tavern and went across the street and met Grigg, were you, Grigg,
and Tavenner, and this other fellow together all the time until you went to the
Emerson Street address? A. Yes, sir.
Q Right? A. Yes, sir.
Q. Now, during that period of time, did you have any conversation with
the defendant Carl Tavenner as to the marihuana received from Sellers? A.
Well, when we first went in to Charles’ Cafe he asked me had I gotten it.
Q. Who asked you that? A. Carl Tavenner.
Q. He asked you what? A. Had I gotten the pot, the marihuana.
Q. Is that all he said? A. No, there was more.
MR. BOGORAD: Objection, Your Honor.
THE COURT: State the grounds.
95
56
17 |
MR. BOGORAD: He was leading !
THE COURT: I don't think the question "Is that all he said?" is a lead-
ing question. |
MR. McLAUGHLIN: I mean in reference to the marahuana.
MR. BOGORAD: He is now leading him, if Your Honor please.
MR. McLAUCHLIN: Pardon me, Your Honor. |
THE COURT: Answer the question. |
THE WITNESS: I believe that was about all that was said, yes, sir.
BY MR. McLAUGHLIN: !
Q. Did you have any conversation from the time that you met Charles
Grigg? A. Yes, sir. He asked me the same question. :
Q. When and where did he ask you that question? A... : From the time when
he first came out and while we were walking over to the — some time. I be-
lieve we were going across the street. |
Q. What did he say? A. He asked me had I gotten the pot I told him
that I had the pot that he left up with Donnie Sellers.
MR. McLAUGHLIN: That is all I have.
THE COURT: Who said "the pot that he left at Donnie sellers?”
THE WITNESS: He said, "Did you get the pot? I left it up at Donnie Sel-
lers' for you." I told him that I had.
THE COURT: Have you finished?
MR. McLAUGHLIN: Yes, Your Honor.
MR. BOGORAD: I would like to have the reporter for rThuraday afternoon
and I would like to have the question put to this particular witness as to what he
did after he received the marihuana from Sellers. I believe it will show that he
went to his home.
THE COURT: I am not going to stop the trial at this time to go back and
look for that testimony which the reporter does not have with her at this time.
You may during the recess consult her about that. |
RECROSS EXAMINATION
BY MR. BRENNAN: :
Q. Can you recall your testimony as of Thursday? A. ‘Yes, sir.
i
H
|
18
Q. Do you recall a question being put to you, "Where did you go after you
received the marihuana? kis Yes. sir.
Q What did you testify to? A. I said that I went home.
Q Sir, in your reports to the Police Department, have you ever had oc~
casion to mention the testimony you have just put forward? A. Yes, sir.
Q. Was it ever put in one of these particular reports to your superiors?
A. Inawork report. That is an exhibit.
Q. Where is the work report now, sir? A. I have it in the folder outside.
(Short pause.)
MR. BRENNAN: Would you mark this for me?
THE CLERE: No. 1.
THE COURT: What is the "No. 1?"
THE CLERK: That is the one he referred to the last time, Your Honor,
and I just markedit "No. 1."
BY MR. BRENNAN:
Q. Let me show you this paper writing marked "Defendants’ Exhibit No.
1.° A. (Reading.)
Q. Is that the official report you made to the Police Department, sir?
A. Well, it is the report I made. I don't know about "official."
Q. But it is a part of the Police Department's files; is that correct, sir?
A. Yes, sir.
Q. Does any place in that report state what you did on April 4th? A. Yes.
Q. What is the concluding line in that? A. "T left."
98 Q. Is there any other report that continues that particular sheet, sir?
A. No, sir. As far as the date is concerned --
THE COURT: Just answer the questions.
BY MR. BRENNAN:
Q That is for April 4th? A. Yes, sir.
Q. That is for the time you have just testified about; isn’t that correct,
sir? A. Yes, sir.
* * * * * *e *
59
19
Q. After you saw the defendants Tavenner and Grigg as you testified just
now, what did you do then? A. I don’t understand. :
Q, On Thursday afternoon you testified after receiving the marihuana you
went home; is that correct? A. Yes, sir.
_Q, Today you have testified you went up to the 900 blo of Emerson Street;
is that correct? A. Yes, sir.
Q Are both statements correct? A. Well, I did go nome, but not im-
mediately,
MR. BRENNAN: Thank you, Your Honor. That is all. !
MR. BOGORAD: I have no questions.
MR. McLAUGHLIN: I have nothing further, Your Honor.
THE COURT: Step down.
(The witness left the stand)
** * *£ *& & * * |
DANTE LONGO
* * * * * *K * *
DIRECT EXAMINATION
BY MR. McLAUGHLIN:
Q. Now, Officer, your full name is what? A. Detective Dante Longo,
Metropolitan Police.
Q. You are a member of the Metropolitan Police Department? A. Yes,
sir, I am.
Q. Assigned to the Narcotics Squad; is that right? A. That's correct,
sir.
Q. Were you so assigned during the month of April of 1957 ? A. Yes,
sir, I was. |
Q And at that time, during the month of April of 1957, did you know a
man by the name of Mr. Harrigan? A. Yes, sir, I did. !
Q Who was he, if you can tell us, during the month of April, 1957? A.
He was a member of the Metropolitan Police Department assigned to the Nar-
cotics Squad in an undercover capacity to investigate the illicit narcotics drug
20
traffic and the dangerous drug traffic also.
Q. I show you Government's Exhibit marked for identification No. 1 and
ask you if you can identify that? A. Yes, sir, I can.
Q. And how do you identify it? A. I identify it by my initials that I
placed on the small cream-colored envelope, the date and the time that I re-
ceived it from Officer Harrigan.
Q. You identify that as what? A. As a small cream-colored envelope
containing a cellophane wrapper containing a small amount of weed, which was
turned over to me on April 5th at one p.m. at Washington, D. C., Monument
Grounds, by Officer Harrigan. I went to the offices of the Narcotics Squad,
performed a preliminary field test on the weed, which showed by positive color
reaction the presence of marihuana. I placed it in a Treasury Department evi-
dence envelope -~
Q. You are ahead of me now. I show you Government's Exhibit marked
for identification 1-A and ask you, Officer Longo, what did you do with the Gov-
ernment exhibit marked for identification "1" in reference to Government Ex-
hibit 1-A? A. I placed the Government Exhibit No. 1 into this Treasury Depart-
ment envelope 1-A, I placed Exhibit No. 1 into Government's Exhibit No. 1-A and
then I sealed it by the self-sealing lock on the reverse side, placed it in the office
safe on April 9th, and delivered it to the United States Chemist for his analysis.
* *£ * * &€ *& *&
CROSS EXAMINATION
BY MR. BRENNAN:
Q. When and where did you receive the cellophane envelope containing the
weed? A. That was at the Washington, D. C. Monument Greunds on April 5th,
about one p.m.
Q. P.m. being the afternoon, sir? A. That's correct.
** ¢ *+ * * * *
63 Q. Did he tell you he saw the defendant Grigg on April 2d, 1957? A. I
64 believe he did, yes, sir.
Q. Did you have occasion to ask him what he did with this particular cello-
phane or marihuana after he received at at 6030 13th Place, Northwest? A.
65
66
21
Yes, sir. |
Q. What did he do with it? A. He stated that, I believe he had called me
that night and told me what had happened and he stated that he was going to put
it into a locked drawer or cabinet, I don't recall which, until which time he would
turn it over to me. !
Q. Where? A. Where? I don’t understand your question. Where what,
sir? |
Q. You say he was going to put it in a locked cabinet or drawer. Where
was the locked cabinet or drawer? A. At his home, sir. _
Q. Where is his home? A. I don't recall offhand, sir.
Q. Do you know the location, Southeast, Southwest, Northwest? A. Idon’t
recall offhand, sir.
Q. When did he tell you he was going to put itina locked cabinet or draw-
er? A. The night that he received it, April 4th. |
* *£ * * * * * * !
Q. Sir, what time did Officer Harrigan call you the night of April 4th,
1957? A. It was in the evening, or night hours. The time I don't remember.
x* * *£ *€ * * * * |
WARD C. FOULKES
* * * * & * * €
DIRECT EXAMINATION !
BY MR. McLAUGHLIN: |
Q. Your full name, Officer? A. Ward C. Foulkes, assigned to the Mor-
als Division, Metropolitan Police Department, Washington, D.C.
Q. And do you know a man by the name of Harrigan? A. I do, sir.
Q. And how did you know yim? A. He was assigned to. Detective Longo
and myself as an undercover officer. | :
Q. Of the Metropolitan Police Department? A. Yes, sir.
* * * * * * * * |
DONALD W. BOWIE
* * *£ * *€ * * *
22
DIRECT EXAMINATION
BY MR. McLAUGHLIN:
Q. Mr. Bowie, your full name is what? A. Donald W. Bowie.
Q. And you are employed where? A. United States Treasury Depart-
ment, Bureau of Narcotics.
Q. In what capacity? A. Iam aNarcotics Agent.
Q. Now, Agent Bowie, were you present when a demand was made on the
defendant Tavemner and co-defendant Sellers for the order form issued by the
Secretary of the Treasury for the purpose of purchasing marihuana? A. Yes,
sir, I was.
MR. BOGORAD: Objection; irrelevant and immaterial.
MR. BRENNAN: Your Honor, I have to argue a little.
THE COURT: You what?
MR. BRENNAN: I have an objection on the notice to produce. The ques-
tion has been asked just now. There nas been no showing that there was pos-
session by either this defendant Tavenner or Grigg, so that the presumption
that the Government is attempting to bring out right now will be in force. In
other words, until there is some showing that either one of these two defend-
ants transferred marihuana, I don't believe the question regarding order forms
can be brought forth on this particular notice to produce.
THE COURT: I will sustain the objection, the first objection, in so far
as the defendant Sellers is concerned. I will overrule the objection so far as
the defendant Tavenner is concerned. Confine your question to defendant
Tavenner.
* *¢ *¢ * kK * * *
Q Were you present? Did you personally make a demand on the de-
fendant Grigg for an order form issued by the Secretary of the Treasury for
the sale of marihuana? A. Yes, sir, I did.
MR. BRENNAN: Objection, Your Honor.
THE COURT: State the grounds of your objection.
MR. BRENNAN: Your Honor, I object on the same grounds as before,
23
that the notice to produce is immaterial inasmuch as aaa ciate has never been
placed in the defendant Grigg.
THE COURT: I will overrule the objection. Answer the question.
THE WITNESS: Yes, sir, I did.
BY MR. McLAUGHLIN:
Q. Did he produce any such form? A. Outside -- |
Q. Imean, did the defendants produce any form? A. No, sir, he didnot.
THE COURT: Which defendant? |
MR. McLAUGHLIN: Defendant Grigg. :
MR. BRENNAN: I am going to object to that particular question, Your
Honor, in that the defendant Grigg has eight days in which to return an order
form from the time the notice is served.
BY MR. McLAUGHLIN:
Q. When did you make the demand? How long ago? A On Grigg, sir?
Q. Yes. A. On December 11, 1957.
* * * *¢ * * * *
CROSS EXAMINATION
BY MR. BRENNAN:
Q. Sir, have you made a search of the records of the — of the
Treasury to determine whether or not there was an official order form for 44
grains of marihuana? A. Have I made a search of the Treasury records?
Q. Have you searched the records; yes, sir? A. No, sir, I have not.
Q. Can you state of your own knowledge whether or not there is such a
trunsfer order form with the stamps attached or affixed that has been turned
in for this particular marihuana? A. To my knowledge, sir, no form has been
turned in.
Q. So that all you are testifying here today, sir, is that you served a
notice to produce upon this defendant Grigg. Is that correct, sir? A. That's
true. 7
Q. You do not know, sir, whether there has been a return made on that
particular notice to produce? A. To my knowledge, sir, no return has been
made.
24
MR. BRENNAN: All right.
*¥e xk ke &* eK KE K
REDIRECT EXAMINATION
BY MR. McLAUGHLIN:
* * * * *€* *&* & *
WILLIAM P. BUTLER
* * * * * * * *
DIRECT EXAMINATION
BY MR. McLAUGHLIN:
Q. Your full name is what? A. William P. Butler.
Q. You are employed where? A. By the Internal Revenue Service of
the Treasury Department as a chemist.
Q. In what capacity? A. As a chemist.
Q. You have been employed for what period of time? A. Approximately
seven years.
| THE COURT: The Court will recognize the witness’ professional qual-
ifications.
BY MR. McLAUGHLIN:
Q, I show you Government Exhibit marked for identification No. 1, Mr.
Butler and ask you if you can identify that? A. Yes, sir, I can identify this
envelope.
Q. You identify that as what? A. A Treasury Department locked seal-
ed envelope that I received sealed and intact from Officer Longo.
Q. Who opened it? A. I opened the envelope.
Q. What did it contain at the time that you opened it? A. It contained a
coin envelope which in turn contained a cellophane cigarette wrapper.
Q. See if it contains that now. At the time you opened Government Ex-
hibit marked for identification No. 1-A, did it contain Government Exhibit mark-
for identification No. 1 that you have in your hand now? A. Yes, sir, it did.
Q. What did Government Exhibit marked for identification No. 1 contain?
A. It contained this piece of cigarette cellophane paper which held a green
powdered leaf substance.
25 :
Q@. Did you make an analysis of that leaf substance? A. Yes, sir, I did.
I found that the contents of the cellophane were marihuana. | It contained 44 grains
net weight of the leaf substance. |
Q. Can you tell us from what part of the marihuana plant that marihuana
isfrom? A. Yes, sir, it came from the leaf portion.
* * * * * *£ + * !
MR. McLAUGHLIN: Oh. I have no doubt that as far as the evidence is
concerned, as far as Grigg is concerned, Your Honor, because as far as the
exhibit is concerned, that is, the officer giving Grigg the $8.00 for the
purpose of purchasing narcotics, marihuana, and then we have Sellers later
delivering the narcotics and then later the conversation between the officer
Harrigan and the defendant Grigg as to the effect that you get from the substance,
that you get from narcotics or pots that he left with Sellers, I think that the
actions of the defendant before and after the transfer of the marihuana on the
part of Sellers would indicate that Sellers was the agent of Grigg. As far as
the defendant Tavenner, of course the evidence is a little weak as far as he is
concerned because we have him present on the second and think he went a little
bit further than that, he suggested about going to get the marihuana and they
did go to Bladensburg Road and New York Avenue for the purpose of purchas-
ing marihuana and were unable to get it. And then I believe that after the de-
livery on the part of Sellers, I believe that Tavenner also said, not as elabor-
ate as Grigg, but I think Tavenner asked Harrigan if he got the pot, or some-
thing to that effect. I believe that is all we have on him now. I do appreciate
it is rather slim. Of course, as we all know the law, mere presence is not
enough to convict anybody.
THE COURT: Are you finished? :
MR. McLAUGHLIN: Yes, Your Honor. |
THE COURT: A’ ;thing more with reference to this exhibit?
MR. BRENNAN: Not the exhibits, no, Your Honor. !
THE COURT: I will admit Government's Exhibits 1 and 1-A only in so
far as they pertain to the defendant Grigg. I will sustain the patiecton in sofar
as the exhibits relate to the defendant Tavenner.
95
96
26
* *£ ¢ * £ * *K *
THE COURT: What do you say to the motion?
MR. McLAUGHLIN: I object to it strenuously, Your Honor. I think that
we have shown enough here, we don't actually have to put the narcotics in the
hands of Grigg. I think that the evidence shows that Grigg and Sellers were
acting in concert, that the possession in Grigg would naturally -- that the pos-
session of Sellers would naturally be in the constructive possession of Grigg |
himself. Now, as far as Grigg is concerned, as far as the order form is con-
cerned, I think there is a section in the United States Code there in ref-
erence to the order form, demand on the defendant for the order form, and I
think there is something in there that the defendant is supposed to keep that
order form in his possession for a period of about two years, and failing to
produce the order form would indicate that he hasn't paid the tax stamp.
THE COURT: What testimony do you say there is in the case that there
has been no payment of the tax?
MR. McLAUGHLIN: The demand for this order form. He is supposed
to keep that order form for a period of two years, and failing to produce the
order form would indicate that he hadn’t paid the stamp, the tax. It is in there
some place. Just the section I don't know. There is something in here. Where
I don’t know. This is it (indicating).
THE COURT: You arereferring to Section 4744.
MR. McLAUGHLIN: Yes, Your Honor.
THE COURT: Very well. Anything more with reference to the defend-
ant Grigg?
MR. BRENNAN: I would like to say this, Your Honor, on this particular
point of possession. When I searched into the cases, as I did and I did quite
a bit, a little bit of time ago, this is about the seventh or eighth time this case
has been called, no place did I find a notice to produce on the defendant who
was in actual or real possession or control or custody. In the reported cases,
the defendant was arrested and at the time of his arrest was in possession of
marihuana or control of the premises where the marihuana was found. This
27
is the only place I have seen the article on possession drawn out in such great
length showing possession was in and of a particular defendant, we don't have
present at this time, of course. But I don't believe the acting in concert or the
circumstantial agreement was such as to put possession in the defendant Grigg
so that he would have to tender a written order form with the nee attached.
THE COURT: Are you finished?
MR. BRENNAN: Yes, Your Honor.
THE COURT: I think under the rather unusual circumstances of this case,
and particularly in light of the testimony of the witness Harrigan, that the de-
fendant Grigg inquired whether the witness Harrigan had obtained "the pot which
I left" for him at Donald Sellers’ establishes a possession. I believe I must
deny your motion.
MR. BRENNAN: Thank you, Your Honor.
98 MR. BOGORAD: If Your Honor please, I move for a directed verdict.
THE COURT: For a judgment of acquittal. !
MR. BOGORAD: Judgment of acquittal as to Counts 1 and 2 as to defend-
ant Tavenner on the ground the Government has failed to make out a prima fac-
|
|
ie case.
THE COURT: Mr. McLaughlin.
MR. McLAUGHLIN: I think I will have to go along with that, Your Honor.
THE COURT: The Court will grant your motion.
* * * € *€ * * &
100 CHARLES GRIGG
a defendant, called as a witness for and on behalf of the defendants, having been
first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. BRENNAN:
Q. May it please the Court: What is your name, sir? A Charles Grigg
Q. Mr. Grigg, will you speak so that I can hear you back here? A. Yes,
,
Q. What is your address? A. 402 36th Street, Northeast.
28
Q. Directing your attention to April 2nd, 1957, did you have occasion on
that date to meet Officer Harrigan? A. Yes, sir.
Q. When and where was that? A. I was working in the shoe store and Officer
Harriganand Mr. Tavenner came to the front of the shoe store and called me outside.
Q. What, if anything, happened at that time? A. No, sir. I went back
into the shoe store and told the manager I was getting off, it was about 8:30.
And we walked across the street to Charles’ Grill. Officer Harrigan asked me
did I know this boy that he wanted to take me out to purchase some marihuana
from. I told him yes, Iknew him. So he says, “Well, let's ride out there." So
he gave me $10.00, so we rode out there, and we didn’t see anyone and we came
back to Charles’ Grill, we sat down and we all three sat down and we ordered
a pitcher of beer. We drank that, the three of us, and I ordered another one,
and they had a glass out of that, and then he asked me for $2.00 so that Harri-
gan and Tavenner could go get something to eat. I gave him the $2.00 and he
returned and we sat there for about another hour drinking beer, the three of
us. And during the time, I spent most of the money that he had gave me drink-
ing beer, and he said he had to leave, about 12 or 12:30, it was, he said he had
to leave, and me and Tavenner sat there and drank some more beer, and then
I went home.
Q. Now, sir, you had occasion to hear Officer Harrigan testify that you
met him in Charles’ Grill on April 4th, 1957? A. Yes, sir.
Q. Was that correct? A. No, sir.
Q Did you ever have occasion to tell him, "Did you get the pot?" Or,
“Is this the marihuana?" Or any speaking to him of marihuana whatsoever,
after April 2nd? A. No, sir.
MR. BRENNAN: I have no further questions.
CROSS EXAMINATION
BY MR. McLAUGHLIN:
Q Now, on April 2nd, 1957, did you know Harrigan? A. I had saw him
with a couple people that Iknew. I did not know him personally, no, sir.
Q. Who did you see him with? A. Roberts.
29
be Q. And who is Roberts? A. That is all know him by, is Roberts. I
have met him a couple times, and that's about it.
Q. Where did you meet Roberts? A. On 14th Street.
| Q@. Where? A. In Charles’.
103 Q. In Charles’ Grill? A. Yes, sir.
Q. During that time did you know that Roberts was a drug addict? A. I
knew that he was taking pills. I did not know that he was a drug addict.
, Q. What kind of pills? A. I had heard people say that he was taking some
kind of sleeping pills, or something, or some benzedrine or something like that,
sir. !
Q. Do you know whether or not he had any steady employment? A. No,
sir. Ido not. I have only met him a couple times.
Q. When would you see him around Charles’ Grill? A. He usually come
in there almost every night.
te Q. Would you be around there every night? A. Not every night, no, sir.
! Q. Huh? A. Not every night. I used to stop in there after I got off of
work and have a few beers and go home.
Q. Well, now, on April 2nd, when you met Mr. Harrigan, did he give you
$19.00 to purchase marihuana? A. Yes, sir, he did. |
Q. What? A. Yes, sir.
104 Q. Now, where were you going to mueneee the marthnjana? A. He told
| me that this fellow had it. |
+2. Q. What fellow? A. Do I have to give his name, sir?
Q. Sure. A. His name is Barton.
Q, What is his full name? A. They call him Doug. a not know his
full name. |
Q. Allright. And did you know him? A. Yes, sir. |
Q. How did you know him? A. I have met him wpiown.
! Q. Whereabouts uptown? A. At Charles’.
g Q. Well, using the words "hang around," did he nang around Charles’ too?
A. Not every often, sir.
105
106
30
Q. Did you know him as a user or peddler of marihuana? A. No, sir.
Q. Had you? A. No, sir.
Q. Prior to April 2nd, had you ever purchased any marihuana from this
"Doug" before? A. No, sir.
Q. Well, now, on April 2nd, when Harrigan gave you the $10.00 to pur-
chase .: rihuana, was it from this fellow Doug? A. Yes, sir.
Q. And you say you had never purchased any marihuana from him prior
to that time? A. No, sir.
Q. And how did you know wheret- locate this Doug? A. Mr. Harrigan
told me that Doug would probably be at the Rustic Cabins, and he had the stuff.
Q. What? A. He told me that Doug would be at the Rustic Cabins, and
he may have some marihuana.
Q Harrigan told you that; is that right? A. Yes, sir.
Q. After Harrigan told you that, and you had the $10.00 that Harrigan
had given you, where did you go? A. We went to the Rustic Cabins.
Q. When you say "we," you mean who? A. Mr. Tavenner, Mr. Harrigan
and myself.
Q. And where is the Rustic Cabins located? A. It is on Bladensburg
Road in Maryland.
Q. What time would you say you arrived there? A. It was about 10 --
close to 10 o'clock.
Q. In the evening? A. At night, yes, sir.
Q Night? A. Nighttime, yes, sir.
Q. Now, is that in the vicinity of Bladensburg Road and New York Avenue,
Northeast? A. No, sir.
Q. How far is it from New York Avenue? A. It is about two or three
miles.
Q. All right. Now, wh.t happened when you arrived at the R-stic Cabins?
A. Tavenner and I went inside. We did not see anyone we knew. We looked
around and we came back to the car.
Q. Now, at that time, and prior to that time, when you received the $10.00
‘
31
from Mr. Harrigan, did you know that he was a member of the Metropolitan
Police Departme nt? A. No,, sir, I did not.
Q. Now, when you went in the tavern, you say you were unable to locate
Doug? A. Yes, sir. !
Q. Then what did you do? A. I got back inthe car with Harrigan and we
drove back to Charles’.
107 Q. Well, now, you say that Harrigan gave you the money? A. Yes, sir
Q. And asked you to buy it from Doug? A. Yes, sir.
Q. And further told you that Doug had the stuff? A. Yes, sir
Q. Now, why didn't you tell him to buy it himself? A. Well, I figured
that he didn't know Doug and Doug wouldn't sell it to him. —
Q. Oh, you af esse Dy Dt ain cio thay tr him? A, I
guess sO.
Q. What? A. Yes, sir, I guess so. |
Q. Well, now, my next question is, had you bought it from Doug before ?
A. No, sir, I did not know Doug even had it.
Q. You knew possession of Marihuana was a violation of the law, didn't
you? A. Yes, sir
Q. Now, when you returned from the tavern to Harrigan, what did you
tell him? A. I told him that Doug was not there.
108 Q. Then what happened? A. We drove back to Charles".
Q. Did you give him back his $10.00? A. No, sir, I did not.
Q, When you got back in Charles’ Tavern, what happened? A. We ordered
a pitcher of beer and I paid for it out of the $10.00, and we drank it.
Q. Out of Harrigan's $10.00? A. Yes, sir. |
Q. Did Harrigan sit there and help you drink the beer? A. Yes, sir, he
did. !
Q. Then he asked you for $2.00? A. Yes, sir
Q. Did he tell you why he was asking you for $2. 00? A. He said he wanted
to go across the street and buy some food for Mr. Tavenner and hisself.
Q. That left you holding $8.00 belonging to Mr. Harrigan; is that right?
32
A. No; after I paid for the beer, the beer was eighty-five cents and I gave the
waitress a fifteen-cent tip, that left $7.00.
Q. Of Harrigan’s money? A. Yes, sir. Then I ordered another pitcher
of beer, and he drank part of that before he left to go across the street, and I
paid that out of it, and that left $6.00.
Q That left you with $6.00 belonging to Harrigan; is that right? A. Yes,
sir.
Q How long did you and Harrigan sit in Charles’ Tavern drinking beer?
A. After they had come back from across the street, we sat there until 12 or
12:30 drinking beer.
Q. Midnight? A. Yes, sir.
Q. When you left the tavern, how much money did you have belonging to
Harrigan? A. I had about $2.00 left.
Q Now, during all this time that these pitchers of beer were being pur-
chased, Harrigan was right there, wasn’t he? A. Yes, sir.
Q. Now, did Harrigan pay for any of that beer? A. No, sir, I paid for
everything that was ordered that night?
Q. You paid for everything that was ordered out of Harrigan’s money?
A. Yes, sir.
Q In other words, at no time did Harrigan handle his own money in the
Charles’ Tavern? A. No, sir, he did not.
THE COURT: As you know, ladies and gentlemen of the jury, you should
not discuss the facts in the case with anyone during the luncheon recess.
(Thereupon, at 12:30 o’clock p.m., a recess was had until 1:45 o'clock p.m.)
* e+ * *£ *£ & * *
CHARLES GRIGG
* * *¢ * * * K
CROSS EXAMINATION
(Resumed)
* * * * * *£ * *
Q. Now, when you left the Charles’ Grill, how much of Harrigan’s money
did you have? A. It was dout $2.00.
Q. About $2.00? A. Yes, sir.
Q. What time did you leave Charles’ Grill? A. I left Charles! about one
or one-thirty. |
Q. Well, now, was April 2nd the first time that you were ever in the comp-
any of Officer Harrigan? A. I had saw him before and I was introduced to him
by Robert Botts, the man that they call Botts, and that's about it.
112 Q. In other words, you were never in his company drinking beer prior
to April 2nd of 1957; is that right? A. Not at the same table, sir. I have saw
him in Charles’ a couple times drinking beer.
Q. I mean at the same table. A. No, sir, not at the same table; no, sir.
Q. Now, after April 2nd of 1957 -- when you left Charles" Tavern, would
be about what time? A. It was about 1:30.
Q, A.m.; in the morning? A. Yes,sir. :
Q. Now, did you have an occasion tosee Harrigan again after that?A. No, sir.
Q, Did you ever return the money to him? A. No. |
Q. What was your purpose in keeping Harrigan’s money? A. Well, after
I had spent most of it, he got up and left before we did, and me and Tavenner
sat there and drank some more beer, and then I went on home, and the next time
I saw him was December 25th downstairs on the fourth floor in the courtroom.
Q. So you never returned the remainder of his money to os is that right?
A. No, sir, I did not.
* * * * * *€ * !
@, Now, do you know Donald Sellers? A. Yes, sir, I do.
Q. How long had you known Donald Sellers? A. I mag met him occasion-
ally for about six months, I would say.
Q. Was that six months prior to April 2nd of 1957? A. Yes, sir.
Q. Do you understand that? A. Not quite,sure. I wish you would repeat it.
Q. You say you knew Sellers approximately six montlisy is that right?
A. Yes, sir.
Q. Was that six months just prior to April 2nd of 1957? A. Yes, sir.
34
Q. And during the period of six months prior to April 2nd of 1957, where
would you see Sellers, Donald Sellers? A. Around 14th and Kenyon, maybe
down at the White Tower on 14th Street, or either in Charles’.
Q. Would you see him in Charles’ Grill? A. Yes, sir.
Q And during those times, would you be in his company? A. Not exact-
ly, sir. Sometimes he would sit with me and sometimes he would be sitting at
another table.
Q. During that period of time did you consider Donald Sellers a friend
of yours? A. Yes, sir, I did.
Q What? A. Yes, sir.
Q. Now, isn't it a fact that prior to April 2nd, 1957, and the six months
prior to that date, that you and the defendant Carl Tavenner and Donald Sellers
were in one another’s company practically every night in the week? A. No, sir.
Q. Would say three nights out of the week? A. No, sir, I wouldn't say
that. ,
Q. How often during that period of time would you be in the company of
Donald Sellers and the defendant Carl Tavenner? A. Maybe once a week, or
once every other week.
Q. What? A. Sometimes it would be a couple of weeks and I wouldn't
see him.
Q. During that period of time did you know where Carl Tavenner lived?
A. Yes, sir.
Q. Where did he live? A. He lived right off of 14th Street, I think it is.
I don't know the street, sir, but I could go there.
Q. Would you go to his house during that periodoftime? A. No, sir.
Q. Did you know where Donald Sellers lived during that period of time-?
A. Yes, sir.
116 Q. Where did he live? A. He lived on Emerson Street, on the corner,
way uptown on Emerson Street, right off of Georgia Avenue, in the corner house.
Q. Didn't he live in the 900 block of Emerson Street? A. Yes, sir.
Q Isn't it a fact -- didn’t Tavenner live there, too? A. No, it isn't.
35
Q. Had you ever, during that period of time, been in that apartment with
Sellers and Tavenner at the same time? A. No, sir. |
Q. No? A. No, sir, I have never been in there. |
Q. Who lived in the 3000 block, I believe, of 13th Place, Northwest? A.
Alberta Dove.
Q. Had you ever been in that apartment? A. No, sir. |
Q. Isn't it a fact that you and Sellers would go to that apartment quite
often? A. No, sir, itis not.
Q. What? A. No, sir.
Q No? A. No.
117 Q. Did you ever, from April 2nd up until the present dhy, return any money
that Harrigan had given to you on April 2nd, 1957, to Harrigan? A. No, sir.
x* * *£ kK * * kK *
THE COURT: Will you come to the bench?
* * * * * *& * * |
118 MR. BRENNAN: About 15 minutes, Your Honor. By the way, Your Honor,
I will move for my directed verdict of acquittal at the end particularly with the
idea that the presumption of guilt by possession and no explanation of it, went
out the window with the defendant taking this stand. |
THE COURT: I think that there is an element of credibility in the case
in this posture that requires a determination as to who is telling the truth, the
defendant Grigg or the witness Harrigan. I think this is a question of fact for
the jury. I will deny your motion. How much time do you want?
MR. BOGORAD: About ten minutes, if Your Honor please. I will renew
my motion for a directed verdict on Counts 5 and 6. |
THE COURT: The motion will be denied.
122 JUDGE'S CHARGE TO THE JURY
* * * * *€ * * *
123 With reference to the first two counts of the indictment, which charge a
violation of the law relating to the transfer of marihuana on April 4th, the Court
has directed a verdict in favor of the defendant Tavenner. The Court has ruled
36
as a matter of law that the Government has not placed sufficient evidence in
the case to hold the defendant Tavenner on the first and second counts of the
124 indictment. The Court has dismissed these counts of the indictment in
so far as they pertain to this defendant. So that you have before you in the
first two counts of the indictment only the case of Charles C. Grigg.
What does the indictment charge that Grigg did?
The first count of the indictment charges that on or about April 4, 1957,
within the District of Columbia, Charles C. Grigg transferred about 44 grains
of marihuana to James M. Harrigan, not in pursuance of a written order of
said James M. Harrigan on a form issued for that purpose as provided by law.
The essence, then, of this first count of the indictment is that Grigg trans-
ferred marihuana to Harrigan not in pursuance of a written order on a form
required by law.
The second count of the indictment charges with reference to the same
transaction that on or about April 4, 1957, within the District of Columbia,
Charles C. Grigg, being a transferee of marihuana and required to pay a transfer
tax imposed by Section 474la of Title 26 of the United States Code, obtained
about 44 grains of marihuana without having paid such tax. The second count
of the indictment, then, briefly charges that Grigg on or about April 4, 1957,
obtained marihuana without having paid any tax thereupon.
Two questions may arise in your minds at this point, first, as to why this
indictment relates to a transfer of marihuana not on a written form, and the
second, why it pertains only to its possession or receiving as transferee with-
out having a tax paid thereupon.
125 I want to explain to you, as I have explained to other jurors, that the Fed-
eral Government, the Government of the United States, is a Government of
delegated powers. The Federal Government has no delegated power which en-
ables it directly to control the sale and the transfer of narcotic drugs. The
Federal Government, though, has very broad, very extensive taxing powers,
and as a result of these taxing powers, the Congress of the United States has
enacted a large number of statutes which establish a very complicated and
involved tax system relating to the transfer of narcotic. drugs. These indictments,
37 |
the first two counts of this indictment, are predicated upon these tax statutes
which I am going to read to you in a moment, but that is the basic reason why
the nature of these charges is that the transfer was made not on a written order
form as prescribed by law, and that there was no tax paid upon the transfer of
the ma2ihuana.
Remember, then, that in the first two counts of the indictment, you have
only the defendant Charles C. Grigg, and only the transaction relating to the
alleged transfer of marihuana. !
I must point out to you also with reference to these two counts that when
a person does a single act which violates two or more laws, the Government is
entitled to prosecute the actor, the person who does the acts, for the violation
of each of the laws even though there is alleged or charged to be but a single
transaction. !
126 So the Government has charged the defendant Grigg with violations of two
separate laws growing out of a single transaction.
* * *¢£ * * *£ * & :
127 Now, let me read for you the laws under which these counts of this indict-
ment are returned. The first count of the indictment relates to the charges
that Grigg transferred marihuana to Harrigan not on an order form issued
for that purpose as provided by law. The law upon this point is very simple.
The United States Code provides that:
"It shall be unlawful for any person, whether or not required to pay a
special tax and register under certain sections to transfer marihuana, except
in pursuance of a written order of the person to whom such marihuana is
transferred, on a form to be issued in blank for that purpose by the Secretary
of the Treasury or his delegate."
So that this section of the statute makes it illegal to transfer marihuana
except upon a written order of the person to whom such marihuana is trans-
ferred on a form prescribed by the Secretary of the Treasury or his delegated
representative. !
The second count of the indictment is drawn under a section of the United
States Criminal Code which provides that:
128 “It shajl be unlawful for any person who is a ee marihuana re+
quired to pay the transfer tax imposed by Section 4741(a) to acquire or other-
wise obtain any marihuana without having paid such tax; and proof that any person
shall have had in his possession any marihuana and shall have failed, after |
131
132
38
reasonable notice and demand by the Secretary or his delegate, to produce the “
order form required by Section 4742 to be retained by him shall be presump-
tive evidence of guilt under this section and of liability for the tax imposed
thereunder."
* * * *& £ & e *
In determining whether the Government has established the charges against
these defendants, you must consider and weigh the testimony of all of the wit-
nesses who have appeared before you. You are the sole judges of the credibil- E"
ity of these witnesses. This means that you must determine which of the wit-
nesses you are going to believe and to what extent you are going to believe those
witnesses. In determining how much credence, how much credibility you will
give to the testimony of each witness, you have the right to take into considera-
tion the demeanor of the witness on the witness stand, his appearance and man-
ner of testifying, whether the witness impresses you as having an accurate mem-
ory and recollection of the facts about which he is testifying, whether
the witness indicates any favor or prejudice toward the Government or toward
the defendants and, of course, that very important question of whether the wit-
ness has any interest in the outcome of the case.
In addition, you have the right in the jury room to draw upon all of the
personal experiences of your lives and to bring into your consideration of the
credibility of these witnesses any factors that you have heretofore found im-
portant in making the day-to-day determinations which you have had to make
as to whether particular people are telling you the truth or are telling you false- <
hoods. If you believe that any witness wilfully testified falsely as to any material
fact concerning which fact that witness could not possibly be mistaken, you are
then at liberty, if you deem it desirable to do so, to disregard the entire testi-
mony of that witness or any part of the testimony of that witness.
With reference to the defendant Grigg testifying before you as a witness,
you have the right to determine the credibility that you will give to his testimony.
The law makes this defendant a competent witness in his own behalf. You never- 4
theless have the right to take into consideration his situation, his interest inthe
39
133 result of your verdict, and all of the circumstances which surround him,
and you should give to his testimony such weight as in your judgment it is fair-
ly entitled to receive.
x* * *+ *€ * * *€ £
134 There is a defense offered in this case which is legal and rather tech-
nical in its nature, that is, the defense of entrapment. Entrapment is the con-
ception and the planning of an offense by an officer and his procurement of its
commission by one who would not have perpetrated it except for the trickery,
the persuasion, or fraud, of the officer. The Court charges you that the defense
of entrapment, if established, is a good and valid defense, and if established to
the satisfaction of the jury in accordance with the Court's charge to you, the
defendants are entitled to a verdict of not guilty. The law is that the mere fact
that officials or employees of the Government may afford opportunities or facil-
ities for the commission of an offense does not justify the acquittal of the de-
fendant on the ground of entrapment. Artifice and stratagem may be employed
135 to apprehend those engaged in criminal enterprises. But if the jury finds
that the criminal design originated with officials of the Government, and that
they implanted that criminal design in the mind of an innocent person who would
not otherwise have committed the offense, the jury is justified, if they so find,
in returning a verdict of not guilty. The law is well settled that decoys and in-
formers may be used to entrap criminals and to present opportunities to one
intending or willing to commit a crime, but decoys are not permissible to en-
snare the innocent and law-abiding into the commission of crime. Thus when
the criminal design originates not with the defendant, but is conceived in the
minds of the Government officials, and the accused is by persuasion, deceitful
representation or inducement, lured into the commission of a criminal act which
he would not have otherwise committed, the jury may, if they so find, return
a verdict of not guilty. |
* * * * *& * * * |
136 With reference to the defendant Grigg, and the first two counts of the in-
dictment, your verdict upon each count may be either guilty or not guilty.
40
You must reach a separate and independent verdict upon each count for each
defendant who is named in those counts. Consequently on the first count of the
indictment as to the defendant Grigg your verdict may be either guilty or not
guilty. On the second count of the indictment with reference to the defendant
Grigg your verdict may be either guilty or not guilty.
* *¢ * * & *& e *
THE COURT: Do you have any other objection to the charge as given?
MR. BRENNAN: No, sir.
THE COURT: Very well.
* * *£ *£ &£ e Kk *
°
THE COURT: There is a section of the United States Criminal Code which
relates to the Government's position on Counts 1 and 2 of the indictment, that
is, the charge against Grigg that he acted in concert with one or more other
people in this alleged transaction relating to marihuana, and the provision is
as follows:
"Whoever commits an offense against the United States or aids, abets, coun-
sels, commands, induces or procures its commission is punishable as a prin-
cipal. Whoever wilfully causes an act to be done which if directly performed
by him or another would be an offense against the United States, is punishable
as a principal."
* * * * *€* &€& kK *
(Upon return of the jury to the courtroom, the following proceedings were
had:)
* * *£ * * * * *
THE CLERK: What say you as to the defendant Charles C. Grigg on Count
1 of the indictment?
THE FOREMAN: Guilty.
THE CLERK: What say you as to defendant Charles C. Grigg on Count 2
of the indictment?
THE FOREMAN: Guilty.
THE CLERK: What say you as to the defendant Carl F. Tavenner on Count
41
5 of the indictment?
THE FOREMAN: Guilty.
THE CLERK: What say you as to thé defendant Carl F. Tavenner on Count
6 of the indictment? |
THE FOREMAN: Guilty. i
THE CLERK: Members of the jury, your foreman says your verdict in
this case is that the defendant Charles C. Grigg is guilty on Count 1 and guilty
on Count 2, and that the defendant Carl F. Tavenner is guilty on Count 5 and
guilty on Count 6, and that is your verdict, so say you each and all?
(The jury indicated affirmation.)
* * * *£ * * * *
“APPRAL FROM THE UNITED STATES DISTRIOT OOURT FOR THE
‘DISTRICT OF OOLUMBIA. -
No. 14635
COUNTERSTATEMENT OF QUESTION PRESENTED
In the opinion of appellee the following question is pre-
sented:
May an accessory, who aided and abetted the sale of mari-
huana by receiving the money for the drug and placing the
drug in the hands of another for delivery, be found guilty of
the offenses of —
(a) transferring the marihuana not in pursuance of &
written order form, required by law; and of
(b) being a transferee of such marihuana without hav-
ing paid the transfer tax imposed by law?
@
t:
I. The Evidence Supports the Verdict.
Il. Appellant Controlled the Possession of the Marihuana.
III. Appellant Aided and Abetted the Principal Actor
IV. There Was No Error in the Resumption of Direct Examina-
tion of the Witness Harrigan.
V. Mesarosh Case is Distinguishable.
TABLE OF CASES
Ballard v. United States, 99 U. 8. App. D. C. 101, 237 F. 2d 582 (1956)-9, 10, 14
Bates v. United States, 95 U. 8. App. D. C. 57, 219 F. 2d 30 (1955). 9, 10, 14
Berry v. United States, 102 U. 8. App. D. C. 353, 253 F. 2d 875 (1958)... 10, 14
Colosacco v. United States, 196 F. 2d 165 (10th Cir. 1952) 11
Gray v. United States, decided October 3, 1958, —— U. 8. App.
D. C. —. il
Jackson v. United States, 94 U. 8. App. D. C. 71, 214 F. 2d 240, cert.
denied, 347 U. 8. 1021 (1954)
Kuhn v. United States, 24 F. 2d 910 (1928)
Meredith v. United States, 238 F. 2d 535 (4th Cir. 1956)
Mesarosh, et al. v. United States, 352 U. 8. 1 (1956)
Mullaney v. United States, 82 F. 2d 638 (9th Cir. 1936)
Robinson v. United States, 53 App. D. C. 96, 288 Fed. 450
Rosenberg v. United States, 13 F. 2d 369 (9th Cir. 1926)
Villaroman v. United States, 87 U. 8. App. D. C. 240, 184 F. 2d 261
(1950), reversed on other grounds
Walker v. United States, 96 U.S. App. D. C. 148, 223 F. 2d 613 (1955) --
Wigfall v. United States, 97 U. 8. App. D. C. 252, 230 F. 2d 220 (1956)-9, 10, 14
Williams v. United States, 55 App. D. C. 239, 4 F. 2d 432 10, 11
STATUTORY MATERIAL
26 U. 8. C. § 4741 (a)
Fed. R. Crim. P. 30.
GAnited States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 14635
Cxar.es C. GriaG, APPELLANT
v.
Unrirep StatTes oF AMERICA, APPELLEE
APPLAL FROM THE UNITED STATES DISTRICT OOURT FOR THE
DISTRICT OF COLUMBIA
BRIEF FOR APPELLEE
COUNTERSTATEMENT OF THE CASE
Appellant and two other persons, Tavenner and Sellers, were
charged on July 29, 1957, in a six-count indictment with vio-
lations of the narcotic statutes. The first count charged that
appellant and the others on April 4, 1957, committed the of-
fense of transferring 44.0 grains of marihuana to James M.
Harrigan not in pursuance of a written order form required by
law. The second count charged that appellant and the others
on April 4, 1957, committed the offense of being transferees
of 44.0 grains of marihuana without having paid the required
(26 U.S. C. 47412) transfer tax. Appellant pleaded not guilty
to the two charges on August 1, 1957. Counts three to six,
inclusive, did not include appellant.
-~ The case came on for trial in the District Court on
April 24, 1958, and on April 28, 1958, the jury returned a
verdict finding appellant guilty of counts one and two of the
indictment (R. 140). A motion for new trial-and for arrest
(2)
2
of judgment, filed by appellant on May 2, 1958, was denied
on May 16, 1958. Appellant was sentenced on June 18,
1958, to serve five years under count one and from twenty
months to five ‘years:on count two.’ Such:sentenres were di-
3
food “(R. 49):° None of the eight dollars was spent by either
of the defendants at the Grill‘on that date for food-or drink
(R. 49). J j . So DEN chess Liits gems
’ ‘Two days later, that is, April 4; 1957, ‘Harrigan made’ a tele-
Thirteenth’ Place NW: (R. 9,
appellant. (R:113; “114; 115).
marihuana here involved (R. 73). The package of marihuana
received from Sellers contained no Government stamps:of any
kind (R. 13).
After receiving the marihuana from Sellers, Harrigan said
that he went home (R. 13) and placed the marihuana ina
china cabinet (R..14,.25, 64), later delivering the marihuana
to Officers Longo and Foulkes (R. 14,62). On redirect exam-
ination, Harrigan stated that after he obtained the marihuana
from. Sellers (R. 52), he saw Tavenner at the :Charles Cafe
(R. 49) and that Tavenner, a person named Botts and Harri-
gan left the Cafe and walked across the street to the shoe.store
where appellant worked (R. 52). Appellant came out of the
shoe store which was across the street from the Grill located
at 3201 Fourteenth Street NW. in the District, of Columbia.
Whereupon appellant, Tavenner, Botts and Harrigan went to
a place on Emerson Street (R. 53). Prior to going to the
4
shoe store Tavenner asked Harrigan the following: question
“bad I gotten the pot, the marihuana” (R. 54). After Tav-
enner and Harrigan had met appellant on this occasion (April
4, 1957), the latter made a similar inquiry of Harrigan. The
following is the colloquy (R. 55) regarding appellant’s in-
quiry at that time:
. “Q. Did you have any conversation from.the time
that you met Charles Grigg?
A. Yes, sir. He asked me the same question.
Q. When and where did he ask you that question?
A. From the time when he first came out and while
we were walking over to the car, sometime. I believe
we were going across the street.
Q. What did he say?
A. He asked me had I gotten the pot. I told him
that I had the pot that he left up with Donnie Sellers.
Mr. McLavcuuin. Thatis all Ihave.
The Cover. Who said ‘the pot that he left at Donnie
Sellers’?
The Wrrness. He said, ‘Did you get the pot? I
leftit up at Donnie Sellers’ for you.’
I told him that I had.”
When first questioned about what happened after Sellers de-
livered the marihuana to him, Harrigan said he went home
(R. 13). Later in his testimony he said that he met Botts,
Tavenner and appellant at which time Tavenner and appellant
inquired as to whether Harrigan had obtained the marihuana
(R. 54; 55). Harrigan’s official report reflected that after he
received the marihuana from Sellers, he merely “left” Sellers
(R. 57). Harrigan explained that when he said he went home
earlier he meant that he did so but not “Immediately” (R. 59).
In the meantime, Harrigan met Tavenner, Botts and appellant
(R. 52) at which time he received the inquiries from Tavenner
and appellant regarding whether he had ‘procured the mari-
huana (R. 52, 54, 55).
- The codefendant, Carl F. Tavenner, was found guilty of
Counts five and six of the indictment (R. 140) after judgment
5
of acquittal (unopposed by the Government) was granted on
Tavenner’s motion as to counts one and two (R. 98). The
codefendant, Donald V. Sellers, was tried. subsequently and was
adjudged guilty of counts one, two, three and four on July 31,
1958 (Judgment of the Court).
STATUTES INVOLVED
18 U.S. C. § 2 provides:
Principals—(a) Whoever commits an offense against
the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as &
principal.
(b) Whoever willfully causes an act to.be done which
if directly performed by him or another would be an
offense against the United States, is punishable as @
principal. As amended Oct. 31, 1951, ¢. 655, § 17b, 65
Stat. 717.
26 U.S. C. § 4742 (a) provides:
Order forms.—(a) General requirement. It shall be
unlawful for any person, whether or not required to pay
a special tax and register under sections 4751 to 4753,
Gneclusive, to transfer marihuana, except in pursuance
of a written order of the person to whom such mari-
huana is transferred, on ‘a form to be issued in blank for
°° that purpose by the Secretary or his delegate.
26 U.S. C. § 4744 (a) provides:
Unlawful. possession—(a) Persons in general. It
shall be unlawful for any person who is a, transferee re-
quired to pay the transfer tax imposed by section 4741
(a)—
(1) to acquire or otherwise obtain any marihuana
without having paid such tax, or
(2) to transport or conceal, or in any manner facili-
_ tate the transportation or concealment of, any mari-
thuana so acquired or obtained. Proof that any person
shall have had in his possession any marihuana and
shall have failed, after reasonable notice and demand
485185—58-——-2
.o bot bythe Secretary: or his:delegate, to: produce the order
<I form>required by section: 4742) to: be retained’ by’ him
21,7 ghall-be presumptive'evidence: of guilt-under this sub-
ie a ra La
4741 (a).
22D. C.C. § 105 prowidess.-: oxen core
Persons advising, tnciting, or . conniving at. criminal
offense to be charged as principals.—In prosecutions ‘for
“any ‘ermninal offense all persons advising, inciting, or
- conniving’ at the offense, or' aidmg 6r abetting the prin-
cipal offender, shall be’‘charged as principals and not as
accessories, the intent of this section bemg that as to all
accessories before the fact the law heretofore applicable
in cases of misdemeanor only shall apply to all crimes,
whatever the punishment may be. (Mar. 3, 1901, 31
Stat. 1337, ch. 854,$908.)° 0
SUMMARY OF ARGUMENT.
esectinnd axccand fea etiveos tea ied person of ALO
grains of marihuana to a police officer without the required
order form and stamps after accepting payment for such drugs
from the officer. Appellant indicated that he was the culpable
source of the drugs by his inquiry addressed to the officer re-
garding whether the officer had received the marihuana which
he, appellant, had left with the third person for the officer.
The endeavor to attack the credibility of the officer fails in
view of the record of testimony, the trial court’s instructions,
the jury verdict and the precedents holding to the proposition
that issues of credibility are matters of fact for the jury.
ARGUMENT
I
The Evidence Supports the Verdict
In urging that the evidence does not sustain the conviction,
appellant asserts that part of the testimony of the witness Har-
rigan contains what are erroneously claimed to be contradic-
tions. A reading of the entire record, nonetheless, fails to re-
z
fleet ivany:-contradictions:or : even -imeonsistencies in” such
- ‘Appellant denied: guilt’ of the offense charged. /Yet;/he'ad-
mitted that on April 2,1957;-he met Officer Harrigan’ (R. 100),
accepted ‘ten, dollars from the latter to be!used for ‘the ‘pur-
chase of marihuana ((R. 101, 106)°and endeavored that day to
procure marihuana for the officer (R2101). « Appellant admit-
ted the retention of-eight:dollars-of-the: orignal sum: received
from: Harrigan (R. 168), saying that’he @pent the'eight dollars
save two dollars for beer and’ tips (R:"109-211)- ‘Appellant
admitted'that Harrigan did: not handle ‘the eight dollars (R.
210) ‘and that*he never returned’ the’money to Harrigan ’(R.-
$92):113;117): “Appellant ‘admitted knowing Sellers (R113)
fora: period of six months prior to April’1957; saying that he
saw Sellers frequently during that period (R. 115). Appellant
did not furnish. the order form rec uired by law. (R..70, 71,.73)
and the marihuana was-delivered to the officer without: the
stamps required by law (R. 18). oR vases
Harrigan testified that he gave the money to appellant for
marihuans and. that.on April 4, 1957, he received. the mari-
huana’from Sellers. Appellant, according to” Harrigan, indi-
cated that he was the prime source of supply of the marihuana
when on April 4, 1957, he asked Harrigan if he had “gotten the
pot”. <R. 55) from Sellers. In response to the court's question
(R. 55) Harrigan said: “He said, ‘Did you get the pot? I left
it up at Donnie Sellers’ for you.’ “¢ :
Appellant. contends: that Harrigan testified inconsistently
about: what happened after he received the marihuana from
Sellers’ “Harrigan said (R. 13). that he went home after he
received the marihuana. Later, he testified (R. 54-55) that
(R. 57) after
fied that he: delivered
Foulkes (R. 14) after keeping it in a cabinet at home over-
night (R. 13, 64). He did not.go. home immediately (R. 59),
thus permitting him adequate time to'see appellant and Taven-
ner (R:52-55).
8
Accordingly, the record fails to reflect any inconsistencies in
the testimony of Harrigan. Assuming, arguendo, that there
were such at the outset, they were fully explained by his state-
ment that he did not go home immediately.
.. Appellant, testifying in his own behalf, denied procuring the
marihuana for Harrigan; yet‘he admitted retaining eight dol-
lars'of Harrigan’s money’ given’ to him for. the purchase of
marihuana. It also appears that. appellant inquired of Har-
rigan as to whether the latter had received the marihuana left
for him by the former with Sellers.
The jury was instructed fully and properly on the subject
of credibility of witnesses (R. 131-133)". Having seen and
heard the witnesses and ‘having been adequately instructed
on the points of: law ‘applicable to credibility, the verdict of
_ 3“In determining whether the Government has established the charges
against these defendants, you must consider and weigh the ‘testimony of
all of the witnesses who have appeared before you. ‘You are the sole judges
of the credibility of these witnesses. This means that you must determine
which of the witnesses you are going to believe and to what extent you
are going to believe those witnesses. In determining how much credence,
how much credibility you will give to the testimony of each witness, you
have’ the right to take. into. consideration the demeanor of the witness on
the witness stand, his appearance and manner of .testifying, whether the
witness impresses you as having an accurate memory and recollection of
the facts about which he {s testifying, whether the witness indicates any
favor or prejudice toward the Government or toward the defendants and,
of course, that, very important, question of; whether the witness has any
interest in the outcome of the case. .. .
“In addition, you have the right inthe jury room to draw upon all of
the personal experience of your lives and to bring into your consideration
of the credibility of these witnesses any factors that you have heretofore
found important in making the day-to-day determinations which you have
had to make as to whether particular people are telling you the truth or
are telling you falsehoods. If you believe that any: witness wilfully testi-
fied falsely as to any material fact concerning which fact that witness
could not. possibly be mistaken, you are then at liberty, if you deem it
desirable to do so, to disregard the entire testimony of that .witness or
any part of the testimony of that witness.
-' “With reference to the defendant Grigg testifying before you as a wit-
ness, you have the right to determine. the credibility that you will give to
his testimony. The law makes this defendant a competent witness in his
own behalf. You nevertheless have the right to take into consideration
his situation, his interest in‘the ‘result of your verdict, and all of the
circumstances which. surround: him, and you should give to his testimony
such weight as in your judgment it is fairly entitled to--receive.”
9
the jury should not now be subject to attack. Bates v. United
States, 95 U. S. App. D. C. 57, 59, 219 F. 2d 307 (1955);
Ballard v. United States, 99 U. S.. App. D. C. 101, 102, 237
F. 2d 582 (1956)*. eRe
In Wigfall v. United States, 97 U. S. App. D. C. 252, 253,
230 F. 2d 220 (1956), this Court said:
“Tn our jurisprudence the credibility of witnesses
and the derivation of the truth from oral testimony
are reposed in the hearer of the witnesses. De-
meanor, inflection and gesture, both on direct exami-
nation and under cross examination, are elements in
those determinations. Sole witnesses are common-
places of the courtroom. The jury chooses what to
believe and whether the proof thus believed is con-
vincing beyond a reasonable doubt. The present
case is a typical one for the application of those
fundamental rules.
“This court has held several times that the verdict
of the jury must be sustained if there is substantial
evidence to support it. In the case at bar we think
it is quite clear that if the jury believed the woman
complainant it could have been convinced of Wig-
fall’s guilt beyond a reasonable doubt. If the wallet
ora
2 “The case at bar presents a simple and direct issue of credibility. The
testimony was in flat conflict. The jurors had to believe either the appel-
lant or the two officers. If they believed the officers there was no reason-
able doubt of guilt. This was clearly a jury function, and the trial judge
properly left. the issue to it.”
*«Prror is charged in the court’s refusal to give a familiar instruction
requested by the defendant, which suggested certain criteria to be used in
determining the credibility of witnesses, such as observing demeano
considering possible personal interest or bias. In its charge,
the jury they were the sole judges of the facts, and further said:
‘You are the sole judges of the credibility of witnesses. It is for
you and you alone to determine whether to believe any witness and
the weight to be attached to:any! witness’ testimony as well as the
extent to which the witness should be credited.’
It is perhaps better practice to give the requested fuller instruction, even
though its standards for judging credibility probably would be adopted
anyway by the jury; but we cannot say its omission here was so prejudicial
as to require reversal. A trial judge is not required to instruct in the
language selected and suggested by the defendant.”
10
~ -was in ‘the purse ‘and ‘the ‘purse ‘was closed ‘with a se-
cure’ catch, ‘and if the owner felt the purse twice
bemg pressed ‘against -her left hip, and if Wigfall was
then hulking over her and no one else was on that
“side of her, and if immediately’ thereafter the wallet
was gone, reasonable minds might ‘well believe ‘guilt
‘cbeyond reasonable’ doubt within the: framework of
those proven circumstances.””:..[Footnote:omitted. ]
-’ ¥ is submitted that the court here more than complied
with the standards set forth m the Bates, Ballard, and Wi-
fall cases, supra. ‘Since counsel for appellant below did not
Object to the instruction (R. 138, 139), ‘he ‘may not now
raise the point. ‘Fed. R. Crim. P. 30; Walker v. United
States, 96 U.S. App. D. C. 148, 151, 223 FP. 2d 613 (1955) ;
Villaroman v. United States, 87 U. S. App. D.C. 240, 184
F.2d 261, 262-263 (1950)*; Berry v. United States, 102
U.S. App. D. C. 353, 253 F. 2d 875 (1958).
aoe 8 |
Appellant controlled the possession of the marihuana
It is clear that appellant controlied the possession of the
marihuans transferred to the police officer, Harrigan
(R. 54-55), and that appellant received the money for-the
marihuana so transferred (R. 4, 101). The balance of the
money. was never returned to Harrigan (R. 105, 112, 113,
4137). “The: constructive possession of ‘appellant prior to the
delivery of the marihuana to Harrigan, ‘as thus established
at trial, is sufficient to support.the verdict. Jackson v.
United States, 94 U.S. App. D. C. 71, 72,.214 F. 2d 240,
cert. dented, 347 ‘U. 'S. 1021 (1954); Rosenberg v. United
States, 13 F. 2d 369 (9th Cir. 1926); Robinson v. United
States,53 App. D.C. 96, 288 Fed. 450; Madlaney v. United
States, 82 F. 2d 638, 642 (9th Cir. 1936); Willams v. Umted
States,.55 App. D. C. 239, 241-242, 4 F.2d 432.
Appellant had such dominion over .and control of the
a Oe ee a
TE
Ww.
son, Rosenberg, Robinson, Williams and Mullaney cases,
supra, as to indicate clearly violation ofthe pertinent statutes.
Il
Appellant aided and abetted the principal actor ~
© The court instructed * the jury in the language of the gov-
erning statute * to the effect that whoever aids, abets, counsels,
commands, induces or procures the commission -of an offense is
punishable as‘a principal and that whoever causes an act to be
done which if directly performed by ‘him or ‘another: would ‘be
‘am offense against the United'States is punishable as a princi-
pal: “Since no objection was voiced’at the trial regarding ‘this
charge,” appellant may not:complain now. SEMA
"The record discloses ‘that appellant aided, abetted and pro-
cured the commission of the offense’ Having done:so he is
responsible as ‘a principal. ‘That would have been the case
even had the principal actor (Sellers) not ‘been ‘convicted.
Gray v. United States, decided’October 3, 1958, —— U.S. App.
D. C. ——; citing Meredith v. United States, '238 F. '2d'535,
$42°(4th Cir. 1956) and Colosacco 'v. United States, 196 F. 2d
465, 167 (20th Cir. 1952). a
In the Meredith case, supra, the present Chief Judge Sobeloff,
sitting with the late-Chief Judge Parker.and Associate Judge
Soper, observed in part as follows (238.F.2d at 542):
“Under this provision, conviction of the principal
actor is not & prerequisite to conviction of the aider and -
abettor. It need only ‘be established that the act con-
stituting the offense was in fact committed by some-
one [citing cases].”
‘However, in this case below but in a separate trial proceed-
ing, the “principal actor,” Sellers, was convicted” for the
offenses charged in counts one and two of the indictment, the
same charges as to which appellant was found guilty...
” R. 188-189.
*18.0.8. O.§ 2; compore-22 D.©.C. § 105.
*R. 138, 139.
®R. 55, 101, 105, 110, 113, 117.
°18 U.8.C. $2.
» Judgment of the Court, in record, dated July 31, 1958.
12
IV
There was no <2 eb toss egal pauie earn
of the witness Harrigan
Appellant cites Kuhn v. United States, 24 F. 2d 910, 914
(1928) in support: of his contention that it’ was error in this
case forthe trial court to permit, the resumption (R. 50) of
direct examination by the Government of the witness Harrigan.
‘The decision, however, fails to support such contention...
In the Kuhn. case a number of persons were charged with
conspiracy to export arms and munitions of war to China.
The witness Borresen,. was named as an accomplice in the
conspiracy... In fact, he had previously entered a plea of guilty
to a charge of bringing some of the same arms into China when
he was. before the United States Court in China. , Subse-
quently, in the Kuhn case, Borresen. testified. in chief. The
trial court permitted the Government to recall Borresen. for
further direct examination and thereupon he gave testimony
as to certain instructions regarding the shipment of the arms
which he claimed were given to him by one or more of the
deféndants, both before and after he reached China. The-in-
structions concerned delivery of guns about. sixty miles south
of Hong Kong. _The-Court said in part (24 F. 2d at 914):
«“*® * Permission to recall the witness was clearly
within the ‘sound discretion of the court. Austin v.
-United States (C..C. A.) 4,F. (2d) .774;; Marron v.
.. United States. (C.,C., A.).;8 F. (2d) 251; Horowitz: v.
United States (C..C.A.) 12 F. (2d) 590. And we donot
find.that such discretion was.abused. That the testi-
mony was relevant and material cannot be.doubted, and
that it may have been measurably inconsistent with
his other testimony affected its weight, but did not
_ render it incompetent. Like considerations apply .to
the manner in which the testimony was elicited and
given. oie
“The other contention made under this. branch of
the case is that it was error to:permit Borresen to testify
as to declarations made by defendants, ‘particularly
13
Chew Fook Gum, in the course of the alleged con-
‘gpiracy, upon the ground, as argued, that Borresen’s
direct testimony (which, if believed, undoubtedly made
-- out a case of conspiracy) Was 80 ‘discredited’ that it
could not be accepted as sufficient for that purpose.
But, even though he was an accomplice, and may have
made some inconsistent statements, the trial court could
with entire propriety accept his testimony as making 8
prima facie case, and proceed accordingly in the recep-
tion of other proofs, leaving the ultimate question of
his credibility and of the weight of all the evidence to
the jury under appropriate instructions.” °
It is clear that the Kuhn case, cited by appellant, supports
the action of the trial court, herein, permitting the resumption
of the direct examination of the witness Harrigan by the Gov-
ernment. Note that the witness Harrigan was not recalled. .
The resumption of. direct examination occurred immediately
(R. 50) after the completion of cross-examination (R. 48).
In the Kuhn case the witness was recalled.
It is clear that the resumption of direct examination here
was not an abuse of discretion.
V
Mesarosh case is distinguishable
Appellant relies heavily on the decision in Mesarosh, et al.v-
United States, 352 U.S. 1 (1956), in support of his contention
that the testimony of.the witness Harrigan should be dis-
regarded. That case, however, is clearly distinguishable from
the present situation.
In the Mesarosh case, the Solicitor General requested re-
mand for a determination by the District Court of the cred-
ibility of the principal witness, Mazzei. The Solicitor General
set forth his reasons for making such & request—including ref-
erences to a number of demonstrated falsehoods by the witness
Mazzei under oath. The Supreme Court reversed the convic-
tion and remanded for new trial.
None of the conditions demonstrated by the Solicitor Gen-
eral in the Mesarosh case are present here. There has been no
14
showing, that Harrigan ever testified falsely in this proceeding
or any, other action or appearance... Moreover, no representa-
tive of the. United States has. had: occasion. to. indicate lack of
confidence. in the: veracity of Mr. Harrigan. Certainly, no
such. showing appears..of record: in this. case nor has it been
shown. by. appellant from sources aliunde.
The, jury below. saw. the. witnesses, heard the testimony and
was. instructed fully. on. the. law. relating to credibility. of wit-
nesses (R. 131-133). No objection. to the court’s. instructions
was, voiced (R..138, 139) and the jury found.appellant guilty
(R., 140)... The: verdict, therefore, should: stand. Bates v.
United States, Ballard v.. United. States, Wigfall v.. United
States, cited supra.
CONCLUSION.
“Wheretre: it is respectfully submitted’ that the judgment
of the District Court be affirmed.
Oxiver-Gasce,
United States Attorney:
‘Epwarp P. TRoxetn,
Principal Assistant United States Attorney:
Cart W. BreLcHeEr,
Assistant United States Attorney.
™ Villaroman v. United States, 8% U. S. App: D.C. 240, 184 F. 2d 261,
reversed on other grounds; Berry v. United States, 102 U. 8. App. D. C.
GU, S. GOVERNMENT PRINTING OFFICE: 1958- ~~
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